Judge declares Obamacare unconstitutional

[Mountain Man]

Source: Texas Judge Rules Obamacare Unconstitutional, Primary Issue Surrounds Individual Mandate

U.S. District in Texas, Judge Reed O’Connor (Fort Worth) has agreed with a coalition of 19 states that Obamacare is structurally unconstitutional without an enforced federal mandate that requires individual participation. (full ruling pdf below)

Absent the enforcement of the individual mandate, Judge O’Conner ruled it was impossible for the Obamacare law to remain. Texas and the 19 state coalition successfully argued they’ve been harmed by an increase in the number of people on state-funded insurance rolls.

The plaintiffs argued: when Congress repealed the tax penalty last year for the individual mandate; they eliminated the U.S. Supreme Court’s prior rationale for finding the ACA constitutional in 2012. The Texas judge agreed.

Judge O’Conner found it is clear the individual mandate is the linchpin of the law “without marching through every nook and cranny of the ACA’s 900-plus pages. The court must find the individual mandate inseverable from the ACA,” he said. “To find otherwise would be to introduce an entirely new regulatory scheme never intended by Congress or signed by the president.”

https://theconservativetreehouse.com...-pdf-included/

© Copyright Original Source

[JimL]

Source: Texas Judge Rules Obamacare Unconstitutional, Primary Issue Surrounds Individual Mandate

U.S. District in Texas, Judge Reed O’Connor (Fort Worth) has agreed with a coalition of 19 states that Obamacare is structurally unconstitutional without an enforced federal mandate that requires individual participation. (full ruling pdf below)

Absent the enforcement of the individual mandate, Judge O’Conner ruled it was impossible for the Obamacare law to remain. Texas and the 19 state coalition successfully argued they’ve been harmed by an increase in the number of people on state-funded insurance rolls.

The plaintiffs argued: when Congress repealed the tax penalty last year for the individual mandate; they eliminated the U.S. Supreme Court’s prior rationale for finding the ACA constitutional in 2012. The Texas judge agreed.

Judge O’Conner found it is clear the individual mandate is the linchpin of the law “without marching through every nook and cranny of the ACA’s 900-plus pages. The court must find the individual mandate inseverable from the ACA,” he said. “To find otherwise would be to introduce an entirely new regulatory scheme never intended by Congress or signed by the president.”

https://theconservativetreehouse.com...-pdf-included/

© Copyright Original Source

That will be appealed. But this is how dumb republican voters are, this lawsuit, which was brought to this conservative activist judge, was signed and filed by the very republican candidates who promised to protect "preconditions" while campaigning. How dumb can republicans get?

[Mountain Man]

That will be appealed.

Probably. But it's still another blow to Obama's pathetic "legacy".

This could go all the way up to the Supreme Court again.

[DesertBerean]

I'm really concerned about the loss of the "pre-existing conditions". I could not afford my hearing aids because of it. I know the insurance companies don't like it, but to me it's a heavy penalty people pay through no fault of theirs. I admit this was pretty much the only thing I like about ACA.

[Mountain Man]

For every one thing Obamacare got right, it got countless other things wrong.

[One Bad Pig]

I'm really concerned about the loss of the "pre-existing conditions". I could not afford my hearing aids because of it. I know the insurance companies don't like it, but to me it's a heavy penalty people pay through no fault of theirs. I admit this was pretty much the only thing I like about ACA.

I'm pretty sure that most, if not all, of the Republican attempts to minimize the ACA left that part intact, but Democrats demanded that everything stay. So now it's time to pay the piper.

[Mountain Man]

I'm pretty sure that most, if not all, of the Republican attempts to minimize the ACA left that part intact, but Democrats demanded that everything stay. So now it's time to pay the piper.

Right. Democrats demanded all or nothing, and it looks like they're getting nothing. As the saying goes, be careful what you ask for...

[Terraceth]

For those who don't want to read, as I did, through 50+ pages (I'll admit I skimmed some parts), the argument essentially is this:

When the individual mandate went up to the Supreme Court in National Federation of Independent Business v. Sebelius, the opinion was complicated. 5 justices agreed it was not allowable under the commerce clause, 4 justices believed it did, but one of the justices who said it was not allowable under the commerce clause (Roberts) concluded it counted as a tax and was therefore constitutional under the taxing powers of congress and voted to uphold it. The important thing is to note that the majority held the commerce clause did not allow it. This opinion then argues that since the penalty for violating the individual mandate has been dropped to $0, it no longer raises revenue and cannot be regarded as a tax. With that rationale gone, the majority's holding that it is not justified by the commerce clause is restored and the individual mandate is no longer constitutional. It rejects the argument that it doesn't count as regulating anything because of the lack of penalty on the grounds that it's still the law one is supposed to or pay the penalty, even if that penalty is nothing. Finally, it regards the individual mandate as not severable from the rest of the law, and thus strikes the law down in its entirety.

Obviously, that's a simplification, and someone who wants a more in-depth explanation can read the decision itself. The argument is interesting, but feels awfully pedantic. The individual mandate was the focus of the constitutional objection to the ACA, and it was effectively obviated. This decision then concludes that, on the basis of this change, the ACA becomes unconstitutional. It certainly gives its arguments for doing so, but it feels thoroughly counterintuitive that a de-facto-if-not-de-jure repealing of the objectionable portion would actually change a law from constitutional to unconstitutional.

What I would be curious about is what precedent, if any, there is to judicial review of laws that lack any penalty for breaking them.

[Starlight]

A legal question Terraceth (or others) I am curious about...

When a law is tweaked via an amendment to it in this manner, such that it renders the previously constitutional law now unconstitutional, can the courts not simply declare the amendment to the law to be unconstitutional and strike down the amendment and leave the original constitutional law intact? Does US legal precedent allow / endorse this?

It seems strange to me that a 906 page law that has found to be constitutional as a whole, should suddenly become unconstitutional as a whole when an amendment crosses out one sentence of it - the unconstitutional action IMO is the crossing out of that sentence which should then be undone! That is the least activist option for the courts and it then throws the ball back to congress who can decide to either remove the law in its entirety if that is what they want to do, or rewrite large parts of it to create a new version that is constitutional.

I'm not very happy about this Republican strategy of "we don't want to take responsibility for actually repealing the law, so we'll deliberately sabotage it to be unconstitutional and then get the courts to do our dirty work of throwing out the law, thus we achieve our goal without looking responsible to the public for our actions". It's a bit pathetic.

[Terraceth]

A legal question Terraceth (or others) I am curious about...

When a law is tweaked via an amendment to it in this manner, such that it renders the previously constitutional law now unconstitutional, can the courts not simply declare the amendment to the law to be unconstitutional and strike down the amendment and leave the original constitutional law intact? Does US legal precedent allow / endorse this?

It seems strange to me that a 906 page law that has found to be constitutional as a whole, should suddenly become unconstitutional as a whole when an amendment crosses out one sentence of it - the unconstitutional action IMO is the crossing out of that sentence which should then be undone! That is the least activist option for the courts and it then throws the ball back to congress who can decide to either remove the law in its entirety if that is what they want to do, or rewrite large parts of it to create a new version that is constitutional.

I'm not very happy about this Republican strategy of "we don't want to take responsibility for actually repealing the law, so we'll deliberately sabotage it to be unconstitutional and then get the courts to do our dirty work of throwing out the law, thus we achieve our goal without looking responsible to the public for our actions". It's a bit pathetic.

That's actually an interesting question, about whether the change itself could be considered the unconstitutional part. I'm not fully sure on that, but it does seem a way to resolve the quandary. Although I don't think that's what anyone (plaintiff or defendant) argued for in this case, as it was specifically about the constitutionality of the individual mandate itself. I don't think anyone presented the argument of "even if it is unconstitutional, then this part should be struck out instead", but I'm not going to read through the presumably hundreds of pages of briefs and arguments just to figure that out.

However, having surveyed some readings on this subject, the primary challenge to this opinion is on the severability doctrine, which is the question of "if a portion of a law is unconstitutional, how much of the law is to be struck down?" Generally speaking, the important question when it comes to severability is how essential the portion of the law considered unconstitutional is to the rest of it.

There's various possible criticisms to be made of the other parts of the opinion (including whether anyone had standing to begin with to bring the suit), but ultimately, if the individual mandate itself is struck down, there's no practical effect on anyone because it's been made toothless anyway. So whether to uphold it or strike it down is little more than a legal curiosity right now. Of course, whether the rest of the law is to be struck down is much more than a legal curiosity, and that's where severability comes in.

The claim the entire law must be struck down seems strained. I have no objection to the its argument that if the individual mandate were struck down in the original version of the law, that the entire law should be also (indeed all 9 members of the Supreme Court in National Federation of Independent Business v. Sebelius agreed either explicitly or implicitly on this point, the difference in opinion was whether anything had to be struck down to begin with). However, the key word here is "the original version of the law." We're not in the 2010 version, but the 2017 version, even if the only change in the 2017 version was a switch from having an actual penalty to no penalty. Essentially, the argument in the opinion is that in the original form of the law the individual mandate was seen as essential, and that therefore should continue onto the 2017 form, and the whole law should go.

This has gathered criticism even from those who aren't fans of the Affordable Care Act (see here and here) and it's not hard to see why--insisting that severability be decided by a no-longer-existent version of a law seems absurd. As was noted in the second link:

Judge O'Connor is not content to claim the mandate must be invalidated, he goes on to claim that this justifies declaring the whole law invalid because Congress, in 2010, claimed the mandate was essential to the operation of the Act. Yet Congress in 2017 reached a different conclusion when it enacted legislation zeroing out the mandate penalty. The ACA today -- the ACA as amended by Congress in 2017 -- no longer relies upon an enforceable individual mandate to operate because there is none.

Despite this fact, Judge O'Connor concludes that the 2017 Congress's decisions to leave the ACA without an enforceable mandate requires invalidation of the entire law because the 2010 Congress said so. In effect, Judge O'Connor concludes that the 2010 Congress precluded subsequent Congress's from selectively amending the ACA. This would be crazy even if Congress had sought to do this in 2010 -- it's even more crazy as the 2010 Congress did no such thing.

The weakness of Judge O'Connor's severability analysis becomes even more plain when one unpacks the actions of the two Congresses. Insofar as the 2010 Congress claimed the mandate played an essential role in the operation of the ACA, it was referring to a mandate that was enforced by a penalty. That is, the 2010 Congress believed that imposing a financial penalty on the failure to obtain qualifying health insurance would reduce the number of individuals who failed to comply. As there is no such penalty anymore, it is simply nonsensical to rely upon the 2010 Congress's findings to make judgments about the law as subsequently amended in 2017. The 2010 findings concern a law that, for all practical purposes, ceases to exist. What matters is what Congress did -- and what Congress did is create a law that regulates health insurance markets and lacks an enforceable mandate to purchase insurance. This may or may not be good policy, but it is what Congress did, and there's no basis for a district court to undo it.

Consensus seems that it's extremely likely this will just be overturned on appeal.

[JimL]

A legal question Terraceth (or others) I am curious about...

When a law is tweaked via an amendment to it in this manner, such that it renders the previously constitutional law now unconstitutional, can the courts not simply declare the amendment to the law to be unconstitutional and strike down the amendment and leave the original constitutional law intact? Does US legal precedent allow / endorse this?

It seems strange to me that a 906 page law that has found to be constitutional as a whole, should suddenly become unconstitutional as a whole when an amendment crosses out one sentence of it - the unconstitutional action IMO is the crossing out of that sentence which should then be undone! That is the least activist option for the courts and it then throws the ball back to congress who can decide to either remove the law in its entirety if that is what they want to do, or rewrite large parts of it to create a new version that is constitutional.

I'm not very happy about this Republican strategy of "we don't want to take responsibility for actually repealing the law, so we'll deliberately sabotage it to be unconstitutional and then get the courts to do our dirty work of throwing out the law, thus we achieve our goal without looking responsible to the public for our actions". It's a bit pathetic.

I think that is the question the courts will need to answer. I don't know, but it certainly looks weak and was brought to a right wing activist judge to decide. Personally I don't think his decision will hold up. But republicans will most likely pay big time for this sabotage, particularly those who ran on protecting preexisting conditions only to sign on to this suit that would do away with those protections. They are not too bright these republicans, they just got wiped out in the mid terms mostly do to their stance on healthcare and now they give the democrats this same club to bat them over the head with in 2020. Not only that, but if republicans get their way on this sabotage, it's only going to push democrats to go all out for universal, single payer healthcare, after we throw the bums out.

[Sparko]

technically something that was ruled unconstitutional could be overturned again, but it would be very difficult and they would have to prove that some major error was made in the first overruling. And it has never happened before as far as I can tell.

many laws stand for a long time until someone challenges it and then it can be overturned or ruled unconstitutional.

[Terraceth]

technically something that was ruled unconstitutional could be overturned again, but it would be very difficult and they would have to prove that some major error was made in the first overruling. And it has never happened before as far as I can tell.

I'm confused. There's been plenty of times throughout history a decision that declared something unconstitutional was subsequently reversed, either by a higher court through appeal or by a court reversing itself later (e.g. the SCOTUS has overturned its own decisions plenty of times). Did you accidentally phrase something wrong here?

[Bill the Cat]

I think that is the question the courts will need to answer. I don't know, but it certainly looks weak and was brought to a right wing activist judge to decide.

Like the Dems who always take their cases to New York, California, or Hawaii?

Personally I don't think his decision will hold up.

I do. The 2014 court decided that the law stood together as a whole. Invalidate one part, and the whole thing goes.

But republicans will most likely pay big time for this sabotage, particularly those who ran on protecting preexisting conditions only to sign on to this suit that would do away with those protections.

No it doesn't. There are other measures already in committee to handle the pre-existing condition problem.

They are not too bright these republicans, they just got wiped out in the mid terms mostly do to their stance on healthcare

Mostly due to the lies the Libs told about healthcare.

and now they give the democrats this same club to bat them over the head with in 2020. Not only that, but if republicans get their way on this sabotage, it's only going to push democrats to go all out for universal, single payer healthcare, after we throw the bums out.

It'll never happen. When someone actually makes people understand that half of their paychecks will be gutted to pay for everyone else's healthcare, and that the Libs want exactly that, the tables will finally turn in the right direction.

[oxmixmudd]

Like the Dems who always take their cases to New York, California, or Hawaii?



I do. The 2014 court decided that the law stood together as a whole. Invalidate one part, and the whole thing goes.



No it doesn't. There are other measures already in committee to handle the pre-existing condition problem.



Mostly due to the lies the Libs told about healthcare.



It'll never happen. When someone actually makes people understand that half of their paychecks will be gutted to pay for everyone else's healthcare, and that the Libs want exactly that, the tables will finally turn in the right direction.

The sad part to me is that the ONE thing we ALL really needed from ACA is the refusal to allow health insurance companies to block benefits to pre-existing conditions - and that is what they are going to turn their backs on if this goes through. And I cannot be happy about the ACA being attacked as long as the Insurance companies would be allowed to return to that sort of thing.

Jim